Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

His military tenants he eased in a much more considerable manner. By the law of the Conqueror, every military man was obliged to serve at his own expence forty days as well abroad, where the king’s occasions required, as in England, and in person too, unless notoriously incapable; in which case they were obliged to find each a deputy, and if they failed herein, by the strictness of the feudal law, they forfeited their lands, or rather, as the law was used in England, compounded at the king’s pleasure; which, if he was very avaricious, came pretty near the same thing. This was a miserable heavy grievance. For what oppression must it be for a knight of Northumberland, who had, perhaps, but a single fee, to transport himself, it may be, to Guienne, to serve forty days, and then return? Nay, it was inconvenient to the king himself; for as France, where the scene of the king of England’s wars generally lay, was every where full of fortifications, it was scarce possible to finish a war in forty days, however great the humour of that age was for pitched battles; the consequence of which was, that, after that time, the king was ever in danger of being left in the midst of a campaign, with an inferior army.

Henry then, sensible of these inconveniencies, both to himself and his subjects, devised escuage, or scutage, in the fourth year of his reign, upon account of his war with Toulouse upon which his wife had some pretensions. He, knowing that this war required but a small part of his force, did, both in Normandy and England, publish, that such of his military tenants as would before-hand pay a certain sum of money, should be excused from serving, either in person or by deputy; and this sum, which was rated by him extremely moderately, and was, therefore, generally paid by his vassals, rather than serve in so remote a place, he employed in hiring mercenary soldiers of fortune, of whom there was plenty on the continent; and those, by their engagement, were obliged to serve during the continuance of the war[350].

That his sole view, in this new project, was the ease of his people, and the better prosecution of his wars, and not the depressing the military spirit of his subjects, appears from hence; that those who were qualified, and chose to serve in person, he caressed, and encouraged by all means possible; that he never brought a single mercenary into England, when he had wars with Wales or Scotland, but insisted on his subjects personal service; nay, that he never kept those mercenaries on foot in his foreign dominions, but dismissed them as soon as the war was at an end. And this of scutage was the general method he followed in his subsequent wars in France and Ireland. What wonder is it then, that this prince was universally beloved by his people of all ranks? though, as the best institutions are liable to be corrupted, this very scutage, that he devised for public ease, was turned into an heavy engine of oppression by his son John.

Another alteration in the law in the reign of this king, was the point of reliefs, as I mentioned before. The old relief of William the First, which was restored by Henry the First, was certain, to all lords and knights, according to their degrees, and was paid in horses and arms; but now the humour of the times being that every thing should be paid in money, the relief of a knight’s fee was settled at one hundred shillings, the fourth part of its then computed yearly value, and which I suppose was about the price of the armour, a knight was before to pay; and henceforward the arms of the deceased descended to the heir, and consequently the coats of arms blazoned thereon became hereditary. But the reliefs of barons, or earls, were not settled at this time, but remained arbitrary, as Glanville informs us. De baroniis & comitatibus nihil certum est statutum, quia juxta voluntatem et misericordiam domini regis solent baroniæ capitales de releviis suis domino regi satisfacere[351].

From the word statutum I take it for granted this change of reliefs into money was by act of parliament. Indeed, how could it be otherwise; but, then, the most surprising circumstance is, that the great lords, who, in that age principally composed the parliament, should take care in this material point, of the knights, the lower military tenants, and leave themselves at the mercy of the crown. I shall venture on conjecture to assign the reason. The Conqueror settled the reliefs of earls and barons at a certainty, because he had fixed the number of knights fees they should contain; twenty to an earldom, and thirteen and two-thirds to a barony; but by the time of Henry the Second, the number of knights fees contained in them might be greater or less. For instance, if an earl died, and left two daughters, his twenty fees would be divided equally between them; but the dignity was to go to the husband of that daughter the king chose. Now it would be hard that he should pay for ten knights fees, merely because he had the same title, as much as the predecessor paid for twenty. Again, in the new created honours, it seems very probable, from many circumstances, that an earldom might be erected but with fifteen knights fees, or, perhaps, with twenty-five. The certainty of the quantum of land an earldom or barony should consist of not being settled, I imagine, was the reason that the quantum of relief was not expressly determined, though, by fixing that of a knight’s fee, the reasonable relief might, in any case be easily determined. And that Henry, and his son Richard exercised that discretion the law left in them in this equitable manner, we may infer from there being no complaints, as to reliefs, from the earls or barons, during their reigns; but John revived the arbitrary relief of William Rufus, to the great oppression of his nobles, until he was restrained by Magna Charta.

To no other reign than this, I think, can be ascribed, so properly, the invention of assizes of novel disseisin, and the other assizes, for obtaining possession of lands. By the strictness of the very antient feudal law, if a man had been disseized, that is, turned out of possession, if he did not enter, and regain his possession, or, at least, claim it within a year and a day, he lost all right; for, if he was a socage tenant, the possessor had, within that time, paid a rent to his lord, and been by him, who was supposed the best judge, allowed to be the rightful tenant; and, if he was a military one, it was probable, in those ages of perpetual war, he had actually served, at least he had kept himself in constant readiness if called upon. But the limitation of a year and day being soon found too short, it was after extended to five years; then, to the time of the possession of the disseizor himself, namely till he had either died or aliened it. But upon the alienée, or heir of the disseizor, he could not enter, because they came in honestly, by a fair title, and were guilty of no wrong. However, this antient law, that gave no remedy but by entry, during the seizor’s possession, was still too severe; for the disseizor might alien, or die suddenly, before the disseizee could enter, or he might hold the possession manu forti, so that the disseizee might not be strong enough to enter and recover his possession[352].

To remedy these evils, and to prevent bloodshed, the law provided for the disseizee his right of action, either against the disseizor himself, or his heir or assigns, and, in which, upon shewing his right to the land, he should be restored to his possession by the king’s officer, the sheriff, with the posse of the county. But still this action was hitherto but the writ of right, which meddled not with the unlawful possession, only with the absolute right to the land, and this action, if brought in the curia regis, where only impartial justice could be expected; was very dilatory. It was dangerous also, as the tenant in possession might offer battle. In this reign, then, were these possessory actions introduced, for the determining the point of possession, leaving the right of propriety as it was. It was advantageous likewise to the subject, both disseizor and disseizee, as it gave him two trials for his lands; for the writ of right when once determined was final and conclusive[353].

This distinction between the right of possession, and the right of propriety was borrowed from the civil law, which was first introduced in the late reign, and was now, and for some time forward, studied with great assiduity by the English, as appears from the many long transcripts from it to be found in the books of our antient lawyers. There they found the distinction of actions possessory and petitory; possessory when a man had been notoriously in possession, and reputed the owner, and was put out by another of his own authority. The public peace was concerned to protect the possession of the reputed owner, and not to let him suffer the loss thereof while he was suing his petitory action, that is on the mere right, which the other undoubtedly would delay, by all the arts and shifts he could invent. The proceedings, therefore, in possessory actions were summary and expeditious; for they only regarded the possession, and did not determine the absolute right: so there was no conclusive wrong done to either party, let the matter of possession be decided how it would; for he that failed might bring his petitory action for the right.

An assize in our law was a very summary action. Bracton, who lived an hundred years after, calls it novum & festinum remedium, and indeed so festinum was it, that, in its proceedings, it seems to depart from the general rules of reason and all laws. For it is a maxim of all laws, except in some few very extraordinary cases, that no proofs are to be taken till an issue is joined, as our law calls it, or till there is a contest, as the civil law expresseth it; that is, till it is settled what is the matter to be proved, or till there is something affirmed on one side, and denied on the other, upon which the merits of the cause turn. If there be no disagreement about facts, but the question is mere matter of law, the judges, who are best acquainted therewith, are, by our law to determine. If the question be matters of fact, or facts mixed with law, the jury, assisted with the judges, are to determine; though if they doubt about the point of law, they may find the facts specially, and leave the law arising thereon to the judges, which is what we call a special verdict. No jury, therefore, ought to have been summoned till the defendant appeared, and issue was joined, so that it was known what was the matter to be tried; and this is the general rule. But, for the speedy settling and quitting possessions, the assize is an exception thereto, as appears from the writ of assize directed to the sheriff. For, besides giving notice to the defendant, or tenant, as he is called in this action (because he is in possession) the sheriff is immediately to summon a jury or assize, as it is called upon this occasion, who shall directly go to the place, and make themselves judges, by their view, of the nature, quality, and quantity of the land, or thing demanded, and inform themselves, by all the ways they best may, of the former possession of the demandant, and how he came to lose it. They are then to appear the same day with the demandant and tenant, and, when issue is joined between them, are to determine the matter according to their own prior knowledge, and the evidence then given before them. I observed that this action is not final. A brings an assize against B. If judgment be given for A, B may bring his writ of right, if he has the right of propriety, and recover, and so e contra. But though B cannot deny his disseizing A, he may still defend himself. The words of the writ are injuste, & sine judicio, disseizivit. He may therefore shew that he disseized A, justly, that is, that he had a right of entry. As, suppose B was first in possession, A disseizes him; then B, as he lawfully may, disseizes A, A shall not recover. But if B had been in possession, and A’s father had disseized him, and died, so that the land has come to A, who is innocent, B, not entering in the father’s life-time, has lost his right of possession. It is so in A. Now if B disseizes A, the son, though he had ever so good a right to the land, A shall recover the possession; for B had no right to enter, though he had a right to recover the possession he was deprived of by A’s father, by bringing an action. Wherever a man comes innocently to a possession, the law will defend that possession, until it is proved that he hath no good right to it[354].